Why the coming collaspe of the US government is not (entirely) the fault of our defective Constitution

Sandy Levinson

As anybody familiar with my hobbyhorse knows, I believe that out 1787 Constitution, drafted in the belief that we would never have an ideological party system (as distinguished from a party system "merely" based on interest-group politics and willing and able to enter into deals), bears its own share of explanatory power for the pathological dysfunctionality of the American system of government, where the odds of a governmental shutdown on Tuesday morning now seem at least 3-1 (unless John Boehner decides to be a loyal American and sacrifice his Speakership by violating the anti-democratic (as well as anti-Democratic) "Hastert rule" and brings to the floor the "clean bill" that will be passed by the Senate and will receive unanimous support from the Democratic members of the House plus, one suspects, from 17 honorable Republican members of the House who put country above pandering to the crazed Tea Party wing of the contemporary Republican Party. Not all Tea Partiers are crazy or without merit in some of their views, but that scarcely applies to its de facto would-be leader, the neo-McCarthyite (apparently, only Communists and Nazis could possibly support Obamacare) and neo-Huey Long ("I'm just listening to the people, whose views that only I can intuit take precedence over any regular procedures of government") junior senator from Texas). But Boehner gives no indication at all that he is a "Madisonian" committed to the "common good" instead of the very definition of a factional partisan (unless he believes that a governmental shutdown would in fact serve the public good, in which case he would not legitimately be labeled a "factional partisan," but, instead, simply wrong in his thinking.

In any event, as suggested by my subject heading, it is worth repeating, once more, the suggestion of former Republican Rep. Mickey Edwards, in his book The Parties Versus the People: How to Turn Republicans and Democrats into Americans (Yale U. Press, 2012), that the Constitution does not require that the Speaker of the House be a Member of the House. Were the House, both Democrats and Republicans, to agree to elect a distinguished non-member who is widely viewed as being "above" party politics (perhaps because he/she has already had a long and distinguished career and has no further ambitions--think of Sandra Day O'Connor in this context) and who would be committed simply and solely to bring any bill to the floor for a vote that appeared to have the support of a majority of the House, whatever the party composition of the vote, then we would not be facing a governmental shutdown nor a finite chance (probably inching up to at least one in four and perhaps even higher) of a catastrophic default on our debts.

The Constitution is to blame for allowing the Republicans to reject the presumptive commitment of the US Constitution to a "Republican Form of Government," by which is meant a respect for majority rule, even in the House (as denied by the "Hastert Rule"), but a fix for the "Hastert Rule" requires only respect for the underlying vision of the Constitution and not a convention (or even an amendment) to change. This is not true of many other problems with the House, such as its reliance solely on single-member districts, which would, as a practical matter, require a constitutional convention to fix. Though even there, Congress could eliminate partisan gerrymandering in most states tomorrow if it repealed the 1842 statute mandating single-member districts and instead required that any state with more than, say, 9 representatives be divided into appropriately multi-member districts whose representatives would be elected by a proportional vote. The problem is that it is almost literally inconceivable that representatives, both Republican and Democratic, who have benefitted from partisan gerrymandering, would be willing to destabilize the status quo merely because it would make the House more genuinely "representative." Thus the need for citizen-initiated constitutional convention.

If there is an upside to the collapse of the current political order--a governmental shutdown wouldn't do it, unless it goes on for more than several days, but a default on our debt, in addition, certainly would count as a collapse--then perhaps it is that it would lead even those previously too obtuse to connect the dots to start thinking of what a 21st century constitution might look like for the United States.

You do realize that an awful lot of people think that a 21st century constitution would look quite a bit like the one we have now, only perhaps with more features to assure that it actually gets followed? The Constitution you loathe is rather more popular than the politicians whose abuses you enjoy blaming on it.

And I'd remind you, as futile as it may be, that we're not going to default unless Democrats want to preserve Obamacare unchanged more than they want to preserve the nation's credit rating.

I wouldn't call Brett's comment a lie, because a lie entails an intent to deceive, and his comment won't deceive anyone. If a kidnapper makes a ransom demand that is rejected, and he kills the person he kidnapped, no one would be deceived into blaming the person who refused to pay the ransom demand. Most people, in fact, would say that, had he paid the ransom demand, he'd be inviting other kidnappings.

That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, "Stand and deliver, or I shall kill you, and then you will be a murderer!"

-- Abraham Lincoln (Cooper Union Speech)

Mark Field offered some things the Dems might offer to have a "deal" here. Ball in Rs court there. How about the Rs draw up a replacement for ACA with all the popular things, like coverage for children up to 26, covering pre-existing conditions, funding of local clinics, Medicaid expansion (must be, since so many states are signing on) and various other things. Or, clarify. Are these the things that they don't want to fund?

Anyway, if Congress "can" do something, no, it is not "just" the fault of the Constitution. Ultimate, "we the people" let this go on. Our 'leaders' are enablers, but ultimately the blame needs to be placed on some level where the ultimate sovereignty remains.

Hank, if I can be personal, I don't know if you have had any legal training, but one may indeed have an intent to deceive with a falsehood even if a standard reasonable person would not be deceived by the falsehood. It's insanity but it's a falsehood, a lie, unless you go along with George Costanza of Seinfeld sit-com fame that "It's not a lie if you believe it." Well, Bwana Brett (GWH*) may believe what he says. But apparently, Hank, you have not taken my earlier advice to you to check the archives of this Blog to learn more about Brett. Hank, I realize your defense of Brett is half-hearted, but I go along with Abe Lincoln's response as presented by Joe.

Your definition of "falsehood" must be strangely divorced from whether or not things are literally true. If Democrats had no problem with defunding Obamacare, they'd just pass the CR, it would be defunded, the shutdown and subsequent default would be averted.

It is literally true that the only reason the Republican strategy could lead to a shutdown is that Democrats would find that less objectionable than Obamacare being defunded.

Though you might argue the problem is actually Reid; He's bottled up a number of amendments that have upwards of 79% support among Senators. It's not just Republicans "filling the tree" was intended to thwart.

It's not clear whether Bwana Brett's (GWH*) 7:39 AM comment is in response to Mark or the half-hearted [I was being polite] defense of Brett by Hank or my comment in response to Hank. Be that as it may, Bwana Brett continues, now that he is presumably a part-time worker because of Obamacare and has more time on his hands, to re-hashtag his falsehoods with engineering skills. I think Bwana Brett takes umbrage with Hank's suggestion that Bwana Brett's " ... comment won't deceive anyone." As a famous wag once (or twice) said: "With friends like that, who needs an enema?

Shag: I was giving Brett credit for having enough intelligence to know that his statement would not deceive anyone. Don't ask me why, in that case, he made the statement.

Brett: Of course it is literally true that the Democrats could capitulate and avoid the harm that the Republicans threaten. Just as it is literally true that one could pay a kidnapper's ransom and avoid the harm he threatens. It is still false, in the relevant sense, to assert that the person refusingto capitulate to the Republicans, or to the kidnapper, is responsible for the harm. And, again, I credit you with enough intelligence to know that. So why do you claim otherwise?

The difference, Henry, and it's a very important one, is that a kidnapper is not entitled to take you prisoner, and the House IS entitled to write continuing resolutions that don't fund things Democrats like.

So this is rather like calling me a carjacker because I walk out to my own car in the driveway, turn the key, and drive away.

The Democratic Senate has no entitlement that things they like continue to be funded. None whatsoever. The House is acting entirely within it's legal authority.

Brett, I agree that the House is not breaking any law. But that is not the be all and end all. Another important consideration is the implicit understanding that the job of the House is to keep the government operating; having an operating government underlies everything that the House does. The Democrats recognize this; if they did not, then they might shut down the government unless it enacted a single-payer health system.

Another important consideration is that, if Congress enacts a law, then members of Congress who dislike the law must nevertheless acknowledge that it is the law until it is repealed. The Republicans' attempt to refuse to fund the ACA resembles nothing so much as the South's seceding because it was unhappy with the result of the 1860 election. Let's assume for the sake of argument that secession was legal. It nonetheless violated the underlying assumption that the federal government remain in operation.

No, their job isn't to keep the government running at all costs, it's to keep it running properly, which can just as much mean stopping some thing from being done, as making sure other things get done.

It's the law until it's repealed, but defunding laws before they're repealed is scarcely unheard of.

In any event, you're going to lose me every time you analogize what they're doing to something illegal, because they're not doing anything illegal, or even improper. As a branch of the legislature, they're originating legislation, and it's just not entirely to the liking of the Senate and President, who are responding by threatening to shut down the entire government.

Why don't you get on Reid's ass for blocking amendments with 79 supporters in the Senate, or going 3 years without ever originating a budget? That's why we've been running on continuing resolutions for three years: The Senate won't pass a budget, because they don't want a visible bottom line.

Brett's theory, as Henry has pointed out, is one in which no government can ever function. If shutting down the entire system is the way to bargain, both parties will do it, and over the most trivial of reasons -- why not shut down the government until they rename Reagan Airport or until all statues of Robert E. Lee are destroyed? Those would actually be better causes.

No, keeping the government running is a meta-rule. The whole system pre-supposes this goal. Failing to acknowledge that goal is functionally not much different than secession. No wonder it appeals to today's neo-confederates.

Every democracy in the world has a party based system where the majority party or coalition decides what legislation to bring to the floor and this system has worked for centuries so long as elected representatives basically enact the will of their voters.

Our current problem is not a party based system per se, but rather the fact that our elected representatives increasingly impose their will in contravention of ours and the result in the US has been a rising populist revolt of the voters against the technocratic establishments of BOTH parties.

If our elected representatives were implementing our will instead of their own, Obamacare never would have emerged from committee, nevertheless been enacted, and voters would not be forced to harass and threaten their representatives to engage in fiscal guerrilla warfare against a train wreck program which has never enjoyed even plurality support of voters.

THIS is why the polling shows a near revolutionary level of distrust and opposition to government.

Henry said...Brett, I agree that the House is not breaking any law. But that is not the be all and end all. Another important consideration is the implicit understanding that the job of the House is to keep the government operating

The House appropriated the money to fund the government except for Obamacare and will do so again.

They are doing all they need to do to keep the government operating and are not the ones threatening to shut it down.

"If our elected representatives were implementing our will instead of their own,"

27% of the country now refer themselves as Republican.22% identify as Tea Party"40% now refer to themselves as independent.

"More Americans oppose the health care law when you call it Obamacare—46% of Americans oppose the health care law when it carries Obama’s name, while just 37% oppose the Affordable Care Act."http://tv.msnbc.com/2013/09/27/poll-more-oppose-obamacare-than-affordable-care-act/

It's a stupid country.

And the post above is a stupid post.The problem more than anything is the self-identification of most Americans as middle class even those who would rightly be considered working class. People vote their hopes more than their interests, and rich liberals are happy to go along. Reaganomics began under Carter and "liberals" became "neoliberals" without admitting, or recognizing, the change. The rise of anarcho-capitalism has as much to do with the rise of narcissism of the 60's as it does with the Constitution or the Whisky Rebellion (that is it connects to all of them). Jerry Rubin of the Chicago 8 was dubbed "the first Yuppie" and ran "business networking parties" out of studio 54 and the Palladiumhttp://www.people.com/people/archive/article/0,,20078011,00.html

I get tired of college professors who pay just enough attention to current events to feed their specialities. "If all you have is a hammer…" and the Constitution is a hammer to its scholars.

"When the Affordable Care Act takes effect, October 1, requiring most US citizens to obtain health insurance one way or another or pay a tax penalty for going without, a new obligation of citizenship will have been recognized by law.

The responsibility to take care of oneself will have been joined, however loosely, to the long-established right to emergency medical care."

BD: If our elected representatives were implementing our will instead of their own,"

DG: 27% of the country now refer themselves as Republican.22% identify as Tea Party"40% now refer to themselves as independent.

What does partisan self identification (even this far from reality) have to do with my observation above? Opposition to Obamacare is at supermajority levels with both the GOP and Indis. Not to mention climbing with moderate and conservative Dems. http://www.nationalreview.com/article/359692/democrats-against-obamacare-deroy-murdock

As an aside, the expansion of self identification from the parties to Indi is part of the rising populist revolt of the voters against the technocratic establishments of BOTH parties I was discussing.

"More Americans oppose the health care law when you call it Obamacare—46% of Americans oppose the health care law when it carries Obama’s name, while just 37% oppose the Affordable Care Act."

Opponents of this train wreck know it as Obamacare, thus opposition declines when you use the propaganda bill name ACA.

Brett is an "anarcho-libertarian" so his "legal kidnapping" approach is seen as appropriate for him. Now, most of us aren't that breed, including many libertarians, so it is seen as improper. It is somewhat germane, so I would add that this is someone who compares public accommodation laws to "slavery." It has to be understood that he has a somewhat special view of things.

I share many of Sandy's concerns for " ... what a 21st century constitution might look like for the United States." An Amendment here, an Amendment there, may not eliminate what may be considered defects in the Constitution. But I fear a constitutional convention that would look back to be beginnings and events over the past 225+ years of SCOTUS decisions and political reactions in an attempt to plan for the rest of the 21st century and beyond with a new Constitution.

I recently read Adrian Vermeule's "The Administrative State: Law, Democracy, and Knowledge." It will be included as a chapter in a forthcoming Oxford Handbook of the United States Constitution. A link to this chapter is available at Larry Solum's Legal Theory Blog. The text runs 18 pages, filled with quite a bit of "meat" followed by extensive References with titles that may pique the curiosity of those seeking more information on the Administrative State.

As I read Prof.Vermeule's paper, I thought of how a constitutional convention might address the Administrative State. I had difficulty envisioning how such a convention would address the Administrative State. Perhaps the Administrative State could be abolished. If so, what other changes in the Constitution would have to be addressed to address the problems of a Constitution to serve a nation so changed from the late 18th century, both in size and in population, with implications of globalization. Or is the Administrative State here to stay, and if so, how can it be limited to avoid extending the Administrative State too far? There will always be political differences, many of which may be difficult to anticipate.

Yes, I share many of Sandy's concerns, but resolving them in this day and age - or any day and age - may result in even greater defects in a new Constitution. For there is always the matter of interpretation/construction. Perhaps a new Constitution might include a provision governing its interpretation/construction incorporating some concept of originalism. But many years later, there may be disagreements on the application of such a provision.

Prof. Vermeule is to be congratulated for his concise paper on the Administrative State. Unfortunately, he does not directly set out how current issues with the Administrative State may be resolved. Perhaps they can't.

The best way to keep the expertise of the administrative state while checking its arbitrary overreach is to have the bureaucracy submit proposed regulations to Congress for enactment as legislation.# posted by Blogger Bart DePalma : 10:43 AM

Yes, nothing says "efficiency" like have a large committee micromanage every little detail.

Bartbuster, I don't think that Bart is being an imbecile, at least in this instance. He knows what he is doing, which is trying to prevent any government regulations from being promulgated. To him, any regulation is an "arbitrary overreach."

Sandy: "Were the House, both Democrats and Republicans, to agree to elect a distinguished non-member who is widely viewed as being "above" party politics (perhaps because he/she has already had a long and distinguished career and has no further ambitions--think of Sandra Day O'Connor in this context) and who would be committed simply and solely to bring any bill to the floor for a vote that appeared to have the support of a majority of the House, whatever the party composition of the vote, then we would not be facing a governmental shutdown nor a finite chance (probably inching up to at least one in four and perhaps even higher) of a catastrophic default on our debts. "

First, this is a ridiculous idea in general; the people voting for the leader who is 'above politics' would be themselves heavily politically committed.

And in the particular, Sandra Day 'Bush v. Gore' O'Connor is not 'above politics'.

The purpose of the checks and balances of our constitutional Republic is to prevent arbitrary policy impositions by executives and even transient congressional majorities. Policy proponents actually have to justify their policies and assemble coalitions.

I know that actually enforcing our Constitution's checks and balances is a pain in the ass for authoritarians and their supporters, which is why I proposed it.

Bart: This should go without saying, but agencies issue regulations pursuant to statutes, which have been enacted pursuant to our constitutional system of checks and balances. Agencies do not make policy beyond deciding how to fill in the details to implement the policies that Congress has adopted and directed them to implement. The agency employees who fill in these details are experts in their fields. Even if members of Congress were willing to act in good faith in assessing the efficacy of proposed agency regulations (which of course they would not be), they are not qualified to do so. That is why I believe that your goal is simply to throw a monkey wrench into things.

Henry, those of us who got past the "Schoolhouse Rock" level of understanding government, realize that regulatory agencies tend to use actual legislation as a starting point for improvisation, not as a strict guide to what they can do. If this were not the case, a change of administrations could not have transformed CO2 into a pollutant.

It is obvious that Bwana Brett has not read or if he did does not understand Prof. Vermeule's paper. Maybe Bwana Brett needs to take a graduate course to supplement his Schoolhouse Rock learning. And it should be kept in mind that the Administrative State agency decisions can be subject to judicial review, as Mark pointed out on CO2. Apparently Bwana Brett knows as much about science as did Pres. Reagan.

Here's an excerpt from Prof. Vermeule's paper (p.13) under Part II Democracy:

"To mention only one sociological point that strengthens Long's[*} claim, consider that the professional composition of Congress is dominated by lawyers to a startling degree. Between 1960 and 2004, about 45 percent of members of Congress were former lawyers. The civil service is far more professionally diverse, and to the extent that professional diversity correlates with epistemic diversity, the civil service will incorporate more knowledge of social conditions - a form of representativeness - into its decisionmaking."

Perhaps Sandy can tell us a bit about Prof. Vermeule and the latter's personal views on the Administrative State. It should be kept in mind that this paper is not intended to push Prof. Vermuele's views but to concisely set forth the state of the Administrative State and issues raised by attorneys, political scientiests, academics, etc.

So how might a constitutional convention address the Administrative State?

I despise Bush v. Gore and I'm no generally admirer of Justice O'Connor. That being said, having more-or-less expressed her remorse about helping to elect George W. Bush, I do view her in 2013 as a Madisonian citizen of the republic and not as a Republican party hack. So, yes, I would far prefer the former minority leader of the Arizona House of Representatives to become the Speaker of the House than the craven, spineless, distinctly anti-Madisonian John Boehner, and I would gladly accept her over any Democrat.

The regulatory bureaucracy was legalized by progressive courts ERASING checks and balances from the Constitution starting with Article I, Section 1: "ALL legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Of course! The Constitution is a robust framework but even it doesn't function if somehow vast swaths of the legislature are insane. Indeed it's difficult for any document, process, or procedure to survive that.

Anyway, maybe some time we could have a discussion of what a new constitution ought to look like? Ideally a discussion that doesn't start off with flying spittle?

My contribution, to kick it off: Since no man should be the judge of his own case, neither should any man be able to select the judge in his own case. Therefore the legislative and executive branches should NOT be in charge of staffing the judiciary. I'd suggest that the federal judiciary be chosen by a body comprised of all the state Governors. That's a manageable size, and a group not particularly devoted to the expansion of federal power.

"We have people in the conference, I believe, who'd be just as happy to have the government shutdown," King said. "They live in these narrow echochambers. They listen to themselves and their tea party friends. That keeps them going, forgetting that the rest of the country thinks we're crazy."

Between Brett and Bart (and I think I've said this before) I have to assume they'd prefer this country to be much smaller and less powerful than it is, because without the political and economic centralization the United States would never have become the superpower is today.

Admitting that as an ideal Bart and I would have something to agree about. But I think he likes the fact that the US has troops stationed in 150 countries.I think it's a sign of the failure of our republic.

I think we are entirely too militaristic, but to be fair, that "150" comes from counting embassy guards.

I've said it before: I want America to be just another nation, not a "super-power". The worlds best "just another nation", to be specific. We're suffering from a severe case of imperial over-reach, which is only aggravated by having such incompetent government.

Wow, Shag, you actually anticipated my next suggestion. Exactly, that IS the implication of my reasoning that no level of government should get to appoint it's own judiciary: That states should not get to appoint their own, either.

I've also proposed what I call an "Election Corps", modeled after the Peace Corps: Elections should be locally administered by volunteers randomly assigned to precincts distant from their homes, to prevent collusion. How could you more neatly destroy machine politics?

"I've also proposed what I call an 'Election Corps', modeled after the Peace Corps: .... "

Would there be diversification (ethnic, racial, gender, etc) of the chosen volunteers? Would they be compensated and by whom? Would a federal/state bureaucracy be required? I presume the protections of the 13th, 14th and 15th Amendments would apply to the Election Corps (e.g., volunteers will not wear sheets, white or otherwise).

Should these volunteers coming from distant communities have the right to carry, openly or concealed, arms through and into states that proscribe such? If so, should the persons in the communities that the volunteers are coming into have reciprocal rights even if proscribed by state law?

Brett has not provided a link to his proposal for an Election Corps that might address some of the questions I have raised and to see how really serious his proposal is. The Peace Corps that Brett modeled his proposal on has details, it became part of the bureaucracy, part of the Administrative State, governed by federal law. It is said that the Devil is in the details. But all Brett provides is a missing link.

I'd suggest that the federal judiciary be chosen by a body comprised of all the state Governors.

Do these judges not decide state laws which would involve said governors in various ways? For instance, the 14A rights of state citizens threatened by state police ultimately under the control of the top executive of the state? If so, it's their own case too. "Own case" is not usually applied so broadly -- it's a tad unworkable.

That's a manageable size, and a group not particularly devoted to the expansion of federal power.

Repeatedly, laws struck down (e.g., U.S. v. Morrison) were quite popular with state officials. Also, in general, governors probably are not that concerned with a range of federal power, such as foreign affairs they have no direct involvement in.

Elections should be locally administered by volunteers

This does follow his anarchic philosophy but we have government for a reason. We don't have a group of "volunteers" who are ready and willing to run elections. Also, now we have people electing people who run and choose who runs local offices.

As to machine politics, involvement of independent boards, such as to run elections or re-districting, might be useful, appointment can be by various ways, but random volunteers seems rather impractical.

Brett, my comment at the end was addressed to Bart more than you. I thought that was clear. And libertarians more and more are willing to admit that freedom and democracy are incompatible. I've been complimented more than once agreeing, because "most liberals never admit that!" But I'm not an American liberal. "Liberals" and "conservatives" in this country both have conflicted notions over their ideal relation to each other and the state. As I said it's a stupid country.

I defend the government of the decisions of "a free people" not the stateless anarchy of free persons.

you should stick to self-replicating machines and stay away from discussions of language and law. You're out of your depth,

D. Ghirlandaio said...Between Brett and Bart (and I think I've said this before) I have to assume they'd prefer this country to be much smaller and less powerful than it is, because without the political and economic centralization the United States would never have become the superpower is today.

Quite the opposite.

Before progressivism, the US dramatically out grew the other European powers and rose from a colonial backwater to the world's second largest economic power behind the UK in a bit over a century.

Since progressivism and now socialism, the US growth rate has halved and we have suffered under two long term depressions without recoveries. Progressive and socialist Europe is entering civilization failure featuring population, economic and fiscal collapse. We are following the same road to decline.

So China is your model. [Before you start in on the rule from Beijing do a little research on the local fiefdoms in the provinces.]

Business creates bureaucracy; government plays catch-up. Big business without big government is even less conducive to freedom than the two combined.As I said, American liberals and American conservatives are conflicted. "Freedom!"Whatever dude.

Those who defend either an ethos of republican responsibility or one of monarchist loyalty at least have their positions clear.

I'll leave the rest -the war between the states etc.- for others to deal with

For real "sarcasm" take a peek at Andy Borowitz's The New Yorker "Millions Flee Obamacare" about the reactions of Tea Partiers seeking "the American dream of liberty from health care." [I don't have the URL, so just "Google."]

Brett, there are plenty of examples of countries with exactly the situation you desire; small government, lots of guns, lots of religion, and shitloads of freedom. Afghanistan, Somalia, and the tribal regions of Pakistan come to mind. That is where we end up if you get what you want.

Mark Field offered some things the Dems might offer to have a "deal" here. Ball in Rs court there. How about the Rs draw up a replacement for ACA with all the popular things, like coverage for children up to 26, covering pre-existing conditions, funding of local clinics,LOL欧服代练buy lol elo boostCheapest Fifa 15 CoinsBuy lol boosting